B.P. Singh, J.
1. The petitioners herein, the Managing Committee of Rajo Sidheshwar High School, Karki and its Headmaster, have filed the instant writ application with a prayer that a writ of mandamus be issued commanding the respondents, in particular the Bihar School Examination Board, to accept the registration forms and fees of the students of the petitioners' institution without late fine in connection with the Annual Secondary Examination 1993 scheduled to be held from 27th April, 1993. It is claimed by the petitioners that the aforesaid school was established in January, 1989. The Management applied for permission to establish the school as well as for recognition of the school as proprietory school. The matter was being considered by the concerned authorities, and a favour able report was submitted by the District Education Officer to the Deputy Director of Second Education. While the matter was still under consideration, the students who were admitted to class VIII when the school was established, completed their courses and became eligible to take the class X examination in the year 1991. An order was passed permitting such students to appear as private students through a recognised school namely the High School, Hathiyawan, which is a nationalised school. Consequently the students of the school took the 1992 Annual Examination as private students through the aforesaid Hathiayawan High School. A similar request was made for registration of the students for the annual secondary examination to be held in the year 1993. Despite repeated requests no permission was granted' as it was, done earlier. The last date for submission of fees and forms was extended by the Director, Secondary Education by his letter dated 1-3-1993 pursuant to which the last date for receipt of registration forms etc. was extended to the 10th of March 1993. The petitioners claim that the concerned District Education Officer should have tagged the petitioners' school with any recognised school to enable their students to take the examination. Reliance is placed on a letter No. 311 dated'4-3-1993, Annexure 5, of the Additional Secretary to the Government, Department of Human Resources, whereby such permission was given in regard to two similar schools namley, Laloo Prasad Yadav Phuldeo Prasad Yadav High School, Munger and Sudarshan Das Balika High School, Jehanabad. However, the District Education Officer did not pass any order, or make any arrangement, for tagging the petitioners' school with any recognised school. The District Education Officer, however, passed an order, Annexure 7, dated 19-3-1993 whereby provisional permission was granted to register the students of Laloo Prasad Yadav Phuldeo Prasad Yadav High School through a recognised High School. I shall refer refer to Annexure 7 in greater detail later, but I may only observe at this stage that the main point urged on behalf of the petitioners was that the school of the petitioners was discriminated against since a similar school, such Laloo Prasad Yadav Phuldeo Prasad Yadav School was granted the requisite permission, and that too after the last date fixed for receipt of forms and fees had expired. The order Annexure 7 shows that the District Education Officer, passed such an order at the instance of Shri P.K. Khare, Deputy Secretary in the Chief Minister's Secretariat. Consequently the fees and forms of the students of that school were accepted by the Board even after the 10th March, 1993.
2. The petitioners state that they ulti-matley moved the Cabinet Minister Incharge, Secondary Education on 16-3-1993 and on their representation the District Education Officer was directed to take immediate action in accordance with the Government's policy decision. Consequently the District Education Officer by order dated 19-3-1993 tagged the petitioners' school with High School Othwar, and ordered that the students of the petitioners' school should submit their forms and fees through the said recognised school. Pursuant to the aforesaid order the Headmaster of the Siya Sarswati High School, Othwar, forwarded the registration forms of the students of the petitioners' school under cover of letter dated 22-3-1993 and intimated to the Secretary of the Bihar School Examination Board that arrangements have already been made for holding the test examination of such students of the petitioners' school. Despite this, when the Secretary and the Headmaster of the petitioners' school submitted regristration forms of the students to the respondent Bihar School Examination Board on 23-3-1993, the Board refused to accept the registration forms on the ground that the last date for filling such registration forms had expired. The petitioners made their best effort to persuade the authorities to accept the registration forms but the authorities refused to do so.
3. In these circumstances, it was submitted on behalf of the petitioners, that in the case of Laloo Prasad Yadav Phuldeo Prasad Yadav School, registration forms were accepted on 17-3-1993 despite the fact that the last date for submission of such forms was 10-3-1993 as per Annexure 4. The petitioners' school however was discriminated against, with the result that the students of the petitioners' school were being deprived of the opportunity to take the Secondary Examination.
4. In its counter affidavit, the Bihar School Examination Board contended that the State Government has to consider the question with regard to grant of permission to establish a school and to give it recognition, if it fulfills the necessary conditions. Under Annexure 4 the last date for submission of forms was extended to 10-3-1993 from 30th Sept. 1992. So far as Laloo Prasad Yadav Phuldeo Prasad Yadav High School was concerned, the District Education officer had by his letter Annexure 7 issued on 11-3-1993 directed that the registration forms etc. of that school shall be accepted withn ten days. Since the forms were submitted on 17-3-1993 the same was accepted by the Board treating the said order as a Government order. The forms were provisionally accepted as mentioned in the aforesaid order. So far as the petitioners' school was concerned, although a letter was written by the concerned recognised school on 22-3-1993 (Annexure 9) the registration forms duly filled up were not sent, nor were the names of the students furnished. The number of students was not indicated, and even fees were not submitted. The matter was delayed to such an extent that it was not possible for the Board to make any arrangement for their examination, even if they were allowed by the Board to be registered and were permitted to deposit fees and forms. The necessary steps that have to be taken for holding the examination of such a large number of students, have to be taken much in advance. Without sufficient notice it is not possible to permit students of any private school to take the examination at the last moment.
5. At this stage I may notice the developments that took place while the writ petition was pending before the Court. The crucial documents on the basis of which the students of Laloo Prasad Yadav Phuldeo Prasad Yadav High School were permitted to submit their registration forms etc. is Annexure 7. The aforesaid office order was issued by the District Education Officer, Manger in which he had noticed the earlier order of the Government extending the last date for submission of registration forms. It notices that fact that the aforesaid school had not taken necessary steps even within the extended period, and therefore, it was not possible for him to permit registration of students at a late stage. In the meantime on 10-3-1993, the Deputy Collector of the confidential section of the District Magistrate's office had informed him that a telephonic message had been received from Shri Framed Kumar Khare, Deputy Secretary in the Chief Minister's Secretariat, directing that the registration forms of the students of Laloo Prasad Yadav Phuldeo Prasad Yadav, High School should be got filled up within ten days. In these circumstances it was ordered that the registration forms of the students of the aforesaid school be provisionally accepted. When we noticed from Annexure 7 that the permission was granted by the District Education Officer on the basis of an alleged telephonic message received from the Chief Minister's Secretariat, by order dated 9-4-1993, we issued a notice to Shri P.K. Khare, Deputy Secretary in the C.M.'s Secretariat to appear before this Court and produce material to satisfy the court that the communication made by him on telephone was authorised, and if so under what authority. We had also directed Shri S.K. Sinha, Additional Secretary Human Resources, Development Department to be present in court on the 22nd of April 1993, the date fixed for the appearance of Shri Khare. On 23rd of April, 1993 we recorded the statements of Shri P.K. Khare, Deputy Secretary, in the C.M.'s Secretariat and Shri S.K. Sinha, Additional Secretary Human Resources Development Department. We also proposed to examine the District Education Officer, Manger, who had issued the order Annexure 7 as also the Deputy Collector in the office of the District Magistrate, who is said to have conveyed the message to the District Education Officer.
On 22-4-1993 an affidavit was filed on behalf of the Bihar School Examination Board, affirmed by the Secretary of the Board stating that the Board had cancelled the candidature of all students of Laloo Prasad Yadav Phuldeo Prasad Yadav High School. An office order to this effect has been issued on 22-4-1993, copy whereof was annexed to the affidavit. We directed respondent No. 3 Board not to declare the result of any student whose registration form may have been submitted after the last date fixed for the purpose, namely 10th March 1993. The respondent Board was directed to furnish to this Court a complete list of institutions in respect of which tagging orders had been issued by the authorities concerned. It was also asked to furnish a list of institutions which had submitted registration forms after the last date, and which may have been accepted. The Board was also required to furnish figures as to the number of students who have been permitted to take the examination as regular candidates and those appearing as private candidate through recognised school on the basis of tagging orders.
6. On the 6th of May, 1993 we recorded the statement of Shri Bimla Nand Jha, Deputy Collector, Incharge, Confidential Section, Munger and Shri S.M. Wasi Ahmad, District Education Officer, Munger. It became necessary for this Court to record the statements of these officers because it appears from Annexure 7 that action was being taken on the basis of oral orders issued from the C.M. Secretariat at Patna. We suspected that these orders were being issued unauthorisedly, and in any event there was no justification for issuance of oral orders unless they were confirmed in writing by the concerned authority immediately thereafter. We can take judicial notice of the fact that the system of education in the State has virtually crumbled, and serious allegations are made frequently about the manner in which the system is being worked. Charges of rampant corruption and nepotism are repeatedly made, and in an appropriate case the court may have to consider whether the process of degeneration can be permitted to continue, or at some stage it has to be halted by judicial interference, by enforcing the law and the rules in the manner they should be.
7. A supplementary counter affidavit was filed on behalf of respondent Nos. 3 and 4. The Secretary of the Bihar School Examination Board who has affirmed the affidavit has stated that the Board had made a mistake in accepting the fees and forms including' registrastion fees of the students of Laloo Prasad Yadav Phuldeo Prasad Yadav High School through a recognised school after the last date had expired. The letter as contained in Annexure 7 was wrongly understood to be a Government order. The Board realising its mistake cancelled the candidature of all students of the said institution and an office order to that effect had been issued by the Secretary of the Board vide memo No. 44 dated 22-4-1993. It appears from the annexure as Annexure-A that the advice of the legal remembrance was taken, and thereafter the aforesaid order was passed cancelling the registration of the students of that school.
8. In view of the fact that the registration of the students of Laloo Prasad Yadav Phuldeo Prasad Yadav High School had been cancelled by the Board itself, plea the based on discrimination against the petitioners school lost its force. The petitioners cannot complain that the students of any other school were permitted to fill up their forms and deposit fees after the last date prescribed for the purpose. The school of the petitioners not being a recognised school, cannot claim that its students, as a matter of right, should be permitted to taken secondary examination by the Board. In these circumstances no relief can be granted to the petitioners.
9. However, we have yet to consider whether the process of 'tagging' is authorised by law, and whether the practice of 'tagging' the private schools with recognised schools is within the contemplation of the regulations framed in this regard. I shall first examine the provisions of the Bihar Examination Board Regulations 1964 and thereafter revert to the facts of this case and the state of affairs as disclosed by the witnesses examined by this Court.
10. The relevant regulations are the Bihar School Examination Board Regulations 1964. Article 3(k) defines a regular student's to mean a student who has pursued a course of study prescribed by the Board in an institution or institutions recognised as such. Under Article 3(m) 'Private candidate' means a candidate who has pursued a course of study prescribed by the Board privately, or who has passed the secondary school examination of the Board and desires to appear in an optional subject not offered by him in the examination which he has passed. Chapter IV of the regulations prescribes the conditions under which students shall be admitted to the secondary school examinations of the Board. Article 1 of Chapter IV provides that subject to such conditions as may be specified by the Board from time to time, every recognised Secondary School in the State of Bihar shall be eligible to send up candidates for the Board' Secondary or Higher Secondary Examination, as the case may be. The article goes on to provide for the maintenance of registers, records etc. and provides for the filing of returns, information, as may be required by the Board from time to time. Articles 2 and 3 of Chapter IV provide for the eligibility of regular candidates and private candidates. They are reproduced below for convenient reference:
'2. Eligibility of candidates -- Subject to conditions prescribed under these regulations, the following class of candidates shall be eligible to be sent up for the examinations of the Board:
(a) The candidate who has attended a regular course of study in the top-most class in one or more high schools for at least one session immediately preceeding the examination in which he intends to appear and whose record of work and conduct is assessed to be satisfactory and who has been found fit for being sent up,
(b) The candidate who has failed at the examination of the Board or could not appear therein after having been sent up and has not joined any high school, on the production of a certificate of (i) good conduct and (ii) diligent and regular study from the Head Master or from the Principal of the school last attended by him.
(c) The candidate who has been duly registered by the Board under Article 22 of Chapter IV of this regulation.
Explanation.-- In the case candidate who has once failed at the Board's Examination and is again admitted to a school to attend a regular course of study in the top-most class, the term 'sessions' means the period between the publication of results of the examination at which he failed and the next annual examination.'
'3. Eligibility of Private candidate for Secondary School Examination:--
(a) A candidate who has not attended any recognised secondary school as pupil at any time during one year immediately preceding the examination in which he wants to appear may be admitted to the Board's Secondary School Examination as a private candidate.
(b) Such private candidates as have not been resident in the State for at least one year immediately prior to the Secondary School Examination will not be permitted to appear at the Board's Examination, unless they are the sons or wards of Government servant transferred from another State within that period.
(c) In order to be eligible for appearing at the Secondary School Examination, such private candidates shall have to pass a preliminary test examination held at any Government Secondary School or other secondary school appointed by the Director of Public instruction for the purpose.
(d) Such candidates shall also have to produce a certificate of good conduct from a respectable person of the locality to the satisfaction of the head of the institution concerned.
(e) The private candidate shall have to register in the Board under Article 22 of the Chapter IV of this regulation.'
11. From the aforesaid provisions it would be apparent that normally a regular student may be sent up by a recognised Secondary School for taking the Secondary or Higher Secondary Examination. However, a different procedure has been prescribed for a candidate who has not attended any recognised Secondary School as pupil at any time during one year immediately preceding the examination in which he wants to appear, He may be admitted to the examination as a private candidate. Apart from eligibility based on residence, the regulations provide that such private candidates shall have to pass a preliminary test examination held at any Government Secondary School appointed by the Director of Public Instruction for the purpose. Only if he fulfils the necessary conditions a private candidate can be registered by the Board for appearing at the Secondary School Examinations subject to payment of fees etc. Article 22(iv) further provides that a private candidate shall also send the application for registration with requisite fees through the head of the institution from which he intends to be sent up for the Board Examination, latest by 31st of March. He can however register/himself by 31 st of July of the preceding year on payment of late fine of Rs. 5/- only.
12. The regulations therefore provide that a private candidate must first qualify at the preliminary test examination to be held at any Government Secondary School or other Secondary School appointed by the Director of Public Instruction for the purpose. If a private candidate qualifies at such an examination, he is private candidate qualifies at such an examination, he is required to send his application for registration with requisite fees through head of the institution from which he intendes to be sent up for the Board Examination. There is nothing in the regulation which provides for the tagging of a private school which is unrecognised, with a regog-nised school or a Government school. From the material placed before us it appears that a practice has developed in the State whereby private schools are 'tagged' on to a recognised school or a Government School. Consequently all the students of the private school are permitted en-mass to appear through such a recognised or Government School, subject of course to their eligibility. It is well known that strict conditions have been laid down from time to time by the Government without complying which, recognition is not granted to a school. Such conditions are laid down with a view to providing a certain standard of education. The conditions arc intended to ensure the quality of teaching to be imparted by qualified teachers in schools which have the necessary infrastructures both for mental and physical development. A certain minimum standard has to be achieved before a school can claim recognition. We have in this State thousands of private institutions which do not achieve the requisite standard and have therefore, not being recognised. These schools charge high fees from the students on the promise or understanding that they will be able to take the secondary or Higher Secondary Examination which shall be arranged by the school itself. If the students of such private schools are permitted to take the Secondary or Higher Secondary School Examination as a matter of course in a routine manner, the very distinction between a recognised school and an unrecognised school is obliterated. This has also given rise to corruption and nepotism, because education is riskless and highly profitable business. Regulations framed for the purpose lose significance if the very purpose for which they are framed is defeated by the ingenious methods adopted by the owners of private unrecognised schools, and if I may say so in collusion with the authorities that be in the Secretariat and subordinate offices of the department of Human Resources and Development. In what manner, and under what authority, orders have been passed for 'tagging' of institutions will be evident when 1 refer to the statements of respondents/officers made before this Court on oath. In law there appears to be no justification for such 'tagging' orders, and such 'tagging' orders are not contemplated by the regulations.
13. I shall now consider the material that has come on record as to the manner in which the power has been exercised by officers of the State Government in the matter of' tagging'. Sri H.K. Sinha, Additional Secretary, Human Resources Development in his statement before this Court stated that he did not know under which provision of taw orders were being issued from time to time 'tagging' students of unrecognised schools with recognised or nationalised schools for the purpose of acceptance of registration forms. He admitted that he issued such orders as he was told that only the students of recognised institutions can take examination and the students of unrecognised schools should be 'tagged' as private candidates of such institutions. He admitted that there was an Act known as Bihar School Examinations Board Act, 1952, and that regulations have been framed under that Act. He candidly admitted that he had never considered the Act and the Regulations framed thereunder, before issuing such orders. Since he was told that such things were being done, he issued the orders. He was given to understand by officers of the Government, whom he has mentioned in his statement, that this was the practice and, therefore, he had passed such tagging orders. He further stated that such order for tagging are passed in a routine manner. The natural consequence of such routine orders is that no distinction is made between the students of unrecognised schools and recognised schools, in as much as the former could appear as tagged on candidates with students of recognised/nationalised schools. He was asked to go through the Act and the Regulations, and after going through the same has stated that the regulations provide that the students could be allowed to appear as private candidates after their ability had been tested at an examination to be held in Government Secondary School or other Secondary School appointed by the Director of Public Instructions. He stated that the officer of Director of Public Instructions did not exist any more, and instead there were three Directors-one of Primary Education, another of Secondary Education and the third of Higher Education. It is the Director of Secondary Education who had to act under the regulations. He could not say if there was any list of institutions appointed by the aforesaid Director for the purpose of assessing the ability of the private candidates under the Regulations. In any event, he had no personal knowledge of any such list prepared by the Director of Secondary Education. I shall consider later his statement with regard to the manner in which applications are dealt with in the Government for permission to establish an institution and for grant of recognition. I may only notice that he has admitted that such applications remain pending for as long as five to ten years. When such applications remain pending, permission is granted to the students of those schools to be tagged on to the recognised Government Schools. As a consequence, he admitted, that it may be that all the students enrolled by a school which is unrecognised may appear through Government schools or approved schools as long as their applications remain pending. Therefore, it follows that for the purpose of taking the examination, it did not matter whether the school was a recognised schools or an unrecognised school, because by this method the students of unrecognised schools are enabled to take the examination. He agreed that having regard to exellence of education, only students of recognised institutions should be permitted to take the Examination, because they have been educated in institutions which have all the necessary facilities and infrastructure to impart education of high quality. Unrecognised school may not-have such facilities. He also agreed that on account of long pendency of such application, undue benefit may be derived, including monetary benefit. There may be substance in the allegations of corruption, which were brought to his notice in connection with the grant of recognition to such schools.
14. Sri S.M. Fasi Ahmad, District Education Officer, in his statement before this Court stated that there is a provision for 'tagging' of private schools with recognised schools as per the instruction of the Government. He had not seen any provision in the Act or the Regulations providing for 'tagging' of private institutions with recognised schools for the purpose of permitting the students of unrecognised schools to take the Secondary Board Examination. He was not aware whether under the Act or the Regulations he had power to order 'tagging' of unrecognised schools with recognised schools. He further admitted that normally he did not pass tagging orders, but in the instant case since a message was alleged to have been received from the Chief Minister's Secretariat, he thought that the Government wanted him to pass such an order and, therefore, he passed such an order.
15. It would thus appear from the statements of these officers that neither of them ever bothered to consider the provisions of the Act or the Regulations. Such tagging orders were being passed in a routine manner. On account of the fact that by passing tagging orders, the students of unrecognised schools could appear at the examination to be held by the Board, many corrupt practices had developed. The long pendency of the applications for grant of recognition or permission to establish an institution, provided a situation in which those private schools which were unrecognised and wanted their students to appear, had to obtain a 'tagging' order. Since these schools admitted students, giving to them an impression that they will be allowed to appear at the annual examination to be held by the Board, they had to fulfil their promises to the guardians of the students they had admitted. Obviously, the guardians of the students had to pay the price, and in turn the schools had to obtain the order, It is, therefore, not difficult to guess what type of transactions must have preceded the grant of 'tagging' orders each year. Considering the large number of students who are allowed to appear on the basis of such orders, one may guess the magnitude of corruption and nepotism in such matters. The pendency of applications before the Government provided the necessary opportunity and compelled the private institutions to succumb to the pressures of the power that be. One may not hold anything in principle against a private school, particularly when the State is neither able to meet the demand in the field of education, nor is it able to impart high quality education in its schools. While one may not in the absen new of any alternative, object to be commercialisation of education, that by itself does not absolve the Government of its responsibility to ensure that education imparted in private institutions is of a quality and standard beneficial to the students in particular, and society at large. It is well known that huge salaries are paid to the teachers in this State, and the system of education exists only for the purpose of paying them their salaries. Hardly any education is being imparted in the Government schools. In the 4th supplementary counter affidavit filed on behalf of respondent Nos. 3 and 4 it has been stated that in respect of 990 private institutions tagging orders have been passed in the year 1993. From the figures supplied by the aforesaid respondents it also appears that as many as 1,06,664 students of private schools had sent their registration form and fees through recognised instructions, to which the private schools were tagged.
16. We have, therefore, no hesitation in coming to the conclusion that the authorities that be in the State of Bihar have acted in a callous manner in the matter of passing 'tagging' orders which is not authorised by law. They have passed such orders without considering by law. They have passed such orders without considering the relevant Regulations, and this procedure has given rise to corruption and nepotism in the field of education. In fact, the Additional Secretary himelf admitted that there may be substance in the allegations of corruption which have come to his notice in connection with the grant of recognition to such schools. Obviously, the long pendency of applications for grant of recognition compels the management of private schools to procure a 'tagging' order, and it is for this reason that on extraneous considerations such orders are passed.
17. We may also notice the statement of the Additional Secretary to the effect that applications made by private institutions for recognition, as also for establishing an institution, remain pending for 5 to 10 years. There appears to be no justification for this. Pendency of such applications gives rise to corruption and nepotism and, therefore, it is in the interest of all concerned that they are disposed of promptly. The Government must devise ways and means to see to it that no application for establishing an institution, or for grant of recognition, is kept pending for more than six months. Within that period all necessary steps must be taken and the permission or recognition may either be granted or refused.
18. The other aspect of the matter, which I cannot ignore, is the manner in which orders are sought to be communicated and acted upon. I shall first deal with the factual aspect of the matter.
The Deputy Collector-in-charge, Confidential Section, Munger Sri Bimal Nand Jha, stated that on 10th March, 1993 when he returned to his office he was informed by his stenographer in writing that there was a telephonic message from Sri P.K. Khare, Deputy Secretary in the Chief Minister's Secretariat to the effect that the forms of the students of Laloo Prasad Yadav Phuldeo Prasad Yadav High School, Baren, should be got filled up within ten days, and the information may be passed on to the District Education Officer, so that he may convey the matter at his level. He stated that he simply forwarded the message received in his office and that he was not in any manner concerned with the conduct of examination.
The District Education Officer, Sri Ahmad, stated that the message was comuni-cated to him on the basis of which he granted provisional permission for registration of the students of the concerned school. He did not consider it necessary to get the matter confirmed by the State Government, because according to him, it was the duty of the Boardto seek confirmation from the State Government. He had sent a copy of the order to Sri H.K. Sinha, Additional Secretary, Department of Human Resources Development with a request to grant approval of the arrangement. Before registration he did hot get the matter confirmed from the authority concerned, and acted on the basis of the message conveyed to him by the Deputy Collector. Since the message came from the Chief Minister's Secretariat, he acted without obtining confirmation of the order in writing. He admitted that earlier private students used to make their own arrangement for appearing through any recognised school.
From the evidence of these officials it is apparent that having received the message from the Chief Minister's Secretariat, they did not bother to make any further enquiry, nor was it considered necesssary to get confirmation from the Chief Minister's Secretariat. The District Education Officer did not even consider it necessary to wait for an order or confirmation in writing. Incidentally, it may be observed that it is not anyone's case that the oral order was ever confirmed in writing. On the other hand, Sri Khare, Deputy Secretary in the Chief Minister's Secretariat has a different story to tell.
19. Sri Khare stated that he was looking after public grievances in the Chief Minister's Secretariat and in that connection he used to attend Janta Darbars held by the Chief Minister. Whenever complaints or public petitions were filed, he required the office con-, cerned to inform the Chief Minister's Secretariat about the matter mentioned therein , and the reason why a particular action had or had not been taken. The petitions are entered in a register and each of them is given a registration number. Thereafter, an endorsement is made on such application, and thereafter they are forwarded to the Department concerned. In case of oral complaints, they were enquired into orally from the concerned Department. However, oral complaints were noted down in a diary, and thereafter oral explanation was sought from the Department concerned. In the instant case, an oral complaint was made by someone, whose name he did not remember, to the effect that the students of Laloo Prasad Yadav Phuldeo Prasad Yadav High School were not being permitted to fill up their forms for the ensuing examination. On the basis of such oral complaint he had sought to contact the District Magistrate only to find out the necessary facts. Since he could not talk to him directly on telephone he passed on the message to the clerk in the confidential section of the District Magistrate's office whose name he did not know. He did not care to talk to the District Magistrate later to confirm whether his message had been conveyed to him. He had, however, informed the Chief Minister that the message had been conveyed, but no reply had been received. Thereafter he did not follow up the matter and left it at that. He was under the impression that since no reply had been received, the grievance may have been redressed. He however, denied that he had given any direction to get the fees and forms of the school accepted. He, however, admitted that apart from this school he had not made any such enquiry in regard to any other school. There was nothing on record to show as to what message he had conveyed to the clerk in the Confidential Section of the office of the District Magistrate Munger and, therefore, it was not possible to verify the exact message which he may have conveyed to the clerk concerned. He admitted that it is possible for anyone to ring up an office and convey any message purporting to talk on be hall of the Chief Minister's Secretariat. If oral instructions are not followed up with written orders promptly, there is possibility of persons playing fraud and obtaining unwarranted orders. He also acknowledged that there is a Government order, instructing all officers concerned, that unless a telephonic message or an oral order is confirmed by the competent authority, the officer shall not act on the basis of such oral message or oral instructions. He produced a copy of that order issued by the Cabinet Secretariat dated 4th Nov. 1991. He further stated that in the instant case the District Education Officer was in error in acting upon the so called oral instruction received from the Confidential Section of the District Magistrate's office. After going through Annexure 7, the order of the District Education Officer, he stated that he had never issued any instruction to the effect that the forms and fees should be got filled up and accepted within ten days, even though the last date for filling the forms and submitting the fees was 10th March, 1993. The message completely misrepresented what he had conveyed to the clerk in the Confidential Section of the District Magistrate's Office.
20. The statement of Sri Khare makes an interesting reading. He denied that he had given any instruction to anyone to permit the students of the concerned school to fill up their fees and forms within ten days. He stated that he had merely made an enquiry with regard to the complaint made by someone whose name he did not know. It is difficult for me to accept all that has been said by Mr. Khare, but it is not necessary in this case to make any further enquiry in this regard. I have referred to these facts and events only to highlight the fact that issuance of oral orders may create a situation which may put the Government in an embarrassing situation. In situations which can brook no delay, it may become necessary to convey an order on telephone or by any other means. This however, presupposes that an effective order has been recorded in writing. Such an order may be communicated even orally, to be followed up with confirmation in writing. But no order can be communicated orally even without its being recorded in writing. In such a case, if any officer of the Government acts on the basis of such oral orders, he does so at his own peril. This may give scope for fraud and misrepresentation. I must therefore, caution the officers of the Government of Bihar that if they act on the basis of oral orders, they must take the risk that it entails. Those issuing such orders or instructions must ensure that the order has been recorded in writing. Unless an order has been so recorded, law does not permit its communication orally, because there is nothing to be communicated unless the order first comes into existence. Even where such an order is orally communicated, the concerned officer must take precautions and take a firm action pursuant thereto only after the same is confirmed in writing. In any event, where time does not permit him to wait for such written confirmation, he must make a counter-check and assure himself that the oral order has been rightly and bona fide communicated to him. The instant case in as example of how wrong orders may be, passed on the basis of bogus oral instructions. It also demonstrates that in case the matter is exposed, the person issuing the order/direction may resile from the same and deny having issued any such oral instructions/orders. Governmental business must be performed with the sanctity it deserves, and in the scheme of things such oral orders have no justification in law, unless the orders exist in writing.
21. As observed earlier, the plea of discriminatory treatment cannot be upheld in this case, because it was under a mistake that students of another private school had been permitted to fill up the fees and forms, even after the expiry of the last date. As soon as the mistake was discovered, the order was recalled. The petitioners, therefore, cannot get any relief from this Court, and the writ petitions must be dismissed.
22. Before parting with the judgment I may only caution the Government of Bihar that long pendency of applications for grant of permission to establish a school, and or its recognition, has given rise to corruption and nepotism. Such applications must be disposed of within six months, and all necessary steps must be taken within that period. We are distressed to find that such applications have remained pending for five to ten years as stated by the Additional Secretary to the Government of Bihar. We may also caution the officers of the Government of Bihar that no oral orders should be given, unless they exist in writing. Only orders that have been recorded in writing may be communicated orally. Those receiving such orders must act on the basis of such oral instructions only after assuring themselves that such orders have been truly and bona fide communicated, otherwise they should await the confirmation of such orders in writing. If they fail to take the necessary precautions, they do so at their own peril and cannot later justify their conduct by pleading that they had acted bona fide.
G.C. Bharuka, J.
23. I agree.